Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
DETAILED ACTION
Applicant’s Request for Reconsideration dated December 23, 2025 is acknowledged.
Claims 46, 47, 51, 56, 74, 77, 79, 84, 90, 93 and 94 are pending.
Claims 1-45, 48-50, 52-55, 57-73, 75, 76, 78, 80-83, 85-89, 91 and 92 are cancelled.
Claims 46, 47, 56, 77, 79 and 84 are currently amended. In view of the amendment of claim 46 to recite a different invention than previously presented, claim 56 is newly rejoined for examination on the merits.
Claims 93 and 94 are new.
Claim 90 remains withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claims 46, 47, 51, 56, 74, 77, 79, 84, 93 and 94 as filed on December 23, 2025 are pending and under consideration to the extent of the elected species, e.g., the deodorant agent is “sodium bicarbonate,” the film former is “vp/eicosane copolymer,” and the composition is “anhydrous.”
This action is made FINAL.
37 CFR 1.121 – Manner of Making Amendments
With regard to claims 56 and 90, as per MPEP § 714 II C (A) for any amendment being filed in response to a restriction or election of species requirement and any subsequent amendment, any claims which are non-elected must have the status identifier (withdrawn).
Withdrawn Objections / Rejections
In view of the amendment of the claims, all previous claim objections are withdrawn, all previous claim rejections under 35 USC 112(b) are withdrawn, all previous claim rejections under 35 USC 102(a)(1) are withdrawn, and all previous claim rejections under 35 USC 103 are withdrawn.
Applicant’s arguments have been fully considered. Rejections and/or objections not reiterated from previous office actions are hereby withdrawn. The following rejections and/or objections are either reiterated or newly applied. They constitute the complete set presently being applied to the instant application.
New Grounds of Rejection Necessitated by Amendment
Claim Rejections - 35 USC § 112(d)
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 51, 74 and 94 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 51 recites a spreadability agent, however, claim 46 as currently amended and from which claim 51 depends recites a spreadability agent comprising isododecane and cyclopentasiloxane. Claim 51 fails to further limit claim 46 and omits the isododecane and cyclopentasiloxane of claim 46.
Claim 74 recites the composition is anhydrous, however, claim 46 as currently amended and from which claim 74 depends recites the composition is anhydrous. Claim 74 fails to further limit claim 46.
Claim 94 recites the thickening agent comprises inter alia an animal wax, however, claim 46 as currently amended and from which claim 94 depends recites a thickening agent comprising 12-hydroxystearic acid and a wax having a circumscribed melting point. Claim 94 recites a different thickening agent than claim 46 and omits the 12-hydroxystearic acid – which is not a wax per se but rather an art-recognized gelling agent – and the circumscribed melting point of the wax of claim 46.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 46, 47, 51, 56, 74, 84, 93 and 94 are rejected under 35 U.S.C. 103 as being unpatentable over Guskey et al. (US 5,976,514, published November 2, 1999) in view of Sasaki (JP 2000-086446 A, published March 28, 2000, as evidenced by the USPTO machine translation, IDS references filed June 9, 2025) and Tranner (US 5,508,024, published April 16, 1996).
Guskey teaches compositions comprising (title; abstract; claims):
about 0.01 to 60 wt% of an antiperspirant and/or deodorant active inclusive of odor-absorbing materials such as sodium bicarbonate (column 5, lines 59-65),
about 1 to 60 wt% of a volatile, nonpolar hydrocarbon liquid inclusive of isododecane (spreadability agent) (claims 12-16), as required by instant claim 51, and
about 1 to 60 wt% of a skin irritation-mitigating material that is a nonvolatile silicone (oil based) (claims 9-11), as required by instant claim 56.
The compositions may be anhydrous (column 3, lines 3-12), as required by instant claim 74.
The compositions may further comprise a volatile silicone inclusive of cyclopentasiloxane (claim 17; column 11, line 38 through column 12, line 10).
The compositions may further comprise a suspending agent; the suspending agent may comprise 12-hydroxystearic acid (thickening agent) (claims 19, 26-30; column 12, lines 25-43; column 13, lines 13-53). Other suitable gelling agents include waxes or wax-like materials having a melting point about 65 ºC, examples of which include beeswax (animal wax) (column 13, lines 4-12), as required by instant claim 94.
The compositions may be in the form of a semisolid or in the form of a solid stick (claims 23-25).
The compositions may further comprise additional materials known for use in personal care products inclusive of dyes or colorants, wash-off aids and so forth (column 15, lines 8-23).
The compositions may treat or reduce perspiration wetness (absorbs sweat) and malodor; the compositions are preferably applied once daily to achieve effective control over an extended period (claims 31, 32; column 16, lines 10-21), as required by instant claim 47.
Gurley further teaches applicator devices (column 14, lines 17-30).
Gurley does not teach a film former comprising a VP/Eicosene copolymer and a pigment selected from the group inclusive of yellow iron oxide as required by claims 1, 84.
Gurley does not teach about 0.1 to 15 wt% pigment as required by claim 93.
These deficiencies are made up for in the teachings of Sasaki and Tranner.
Sasaki teaches an armpit makeup comprising 0.1 to 30 wt% of an inorganic coloring matter such as yellow iron oxide, and further comprising an antiperspiration component or/and deodorant component and a skin protecting agent (title; abstract; claims), as required by instant claim 93. The makeup makes the armpit beautiful by covering unsightly marks (paragraph [0005]). The makeup may be in the form of a stick (paragraph bridging pages 3 and 4; page 4, Example 7).
Tranner teaches a topical antiperspirant composition comprising an effective antiperspirant amount of a non-toxic, water-insoluble occlusive film-forming polymer comprising a PVP-linear alpha-olefin copolymer, especially a PVP/Eicosene copolymer or other water-repellant polymer; the composition may take the form of a stick (title; abstract; claims).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the antiperspirant and/or deodorant compositions of Guskey to further comprise 0.1 to 30 wt% of an inorganic coloring matter such as yellow iron oxide as taught by Sasaki in order to cover unsightly marks and to make the armpit beautiful. There would be a reasonable expectation of success because Guskey embraces the presence of additional materials known for use in personal care products inclusive of colorants.
It would have been obvious to one of ordinary skill in the art at the time the invention was made to modify the antiperspirant and/or deodorant compositions of Guskey or/and of Guskey in view of Sasaki comprising sodium bicarbonate as an odor-absorbing material to further comprise an effective antiperspirant amount of the non-toxic, water-insoluble occlusive film-forming polymer comprising a PVP/Eicosene copolymer as taught by Tranner in order to improve the antiperspirant property of the bicarbonate deodorant and in order to improve the water-repellency of the applied product. There would be a reasonable expectation of success because Guskey embraces antiperspirants and because Guskey, as a whole, is drawn to compositions which are preferably applied once daily to achieve effective control over an extended period.
Claims 77 and 79 are rejected under 35 U.S.C. 103 as being unpatentable over Guskey et al. (US 5,976,514, published November 2, 1999) in view of Sasaki (JP 2000-086446 A, published March 28, 2000, as evidenced by the USPTO machine translation, IDS references filed June 9, 2025) and Tranner (US 5,508,024, published April 16, 1996) as applied to claims 46, 47, 51, 56, 74, 84, 93 and 94 above, and further in view of Scavone et al. (US 6,383,476, published May 7, 2002, IDS reference filed June 9, 2025).
The teachings of Guskey, Sasaki and Tranner have been described supra.
They do not teach a hyper-pigmentation treatment agent inclusive of niacinamide as required by claim 77.
They do not teach a brightening agent inclusive of niacinamide as required by claim 79.
These deficiencies are made up for in the teachings of Scavone.
Scavone teaches anhydrous antiperspirant and deodorant compositions comprising a solid, water soluble skin active agent inclusive of vitamin B (niacin) and vitamin C (tyrosine inhibitor); anhydrous compositions allow the water soluble actives to release into the sweat or other moisture on the skin, thus enhancing the active effect (title; abstract; claims; columns 5-7, “Skin Active Agents”). Highly preferred vitamins include vitamin B3 compounds and derivatives thereof inclusive of niacinamide (column 6, lines 25-42), as required by instant claims 77, 79. The addition of vitamins provides the underarm area of the skin with benefits associated with such topical vitamin application (column 1, lines 24-36). Vitamins provide benefits such as reduced skin wrinkles or reduced skin imperfections and smoother and healthier looking skin (column 2, lines 12-23; column 6, lines 1-11).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the modify the antiperspirant and/or deodorant compositions of Guskey in view of Sasaki and Tranner to further comprise a solid, water soluble skin active agent inclusive of niacinamide as taught by Scavone in order to reap the expected skin benefits thereof such as a reduction in wrinkles or other skin imperfections. There would be a reasonable expectation of success because Guskey embraces the presence of additional materials known for use in personal care products.
Response to Arguments
Applicant's arguments have been considered but are moot in light of the new grounds of rejection necessitated by amendment.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ALISSA PROSSER whose telephone number is (571)272-5164. The examiner can normally be reached M - Th, 10 am - 6 pm.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, DAVID BLANCHARD can be reached on (571)272-0827. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ALISSA PROSSER/
Examiner, Art Unit 1619
/BENNETT M CELSA/Primary Examiner, Art Unit 1600